My Initial Reaction to Rudovsky v. West Publishing
While a lot remains to be said about free electronic legal research sources (the subject of my last two blog posts), I’d like to blog about something different this week: two readings that Professor Haight assigned, both of which address Rudovsky v. West Publishing–a defamation suit in which a U.S. District Court awarded two law professors $2.5 million (note: for those interested, one of the readings is available here). Although we, as a class, have not yet discussed these readings, I found them particularly interesting/surprising/blog-worthy.
Although the hyperlink above, which links to an article by Nathan Gorenstein, provides a more thorough background, it’s necessary to first recap the gist of the controversy. As I understand it, two law professors–David Rudovsky and Leonard Sosnov–entered into a contract with West Publishing in 1988, under which they agreed to author Pennsylvania Criminal Procedure: Law, Commentary and Forms. In exchange for their work, West paid the men $5,000 each. And this arrangement continued up until 2008 (i.e., each year the men updated the treatise, they split a $10,000 payment). Additionally, the contract allegedly also contained an explicit agreement that gave West the right to publish updates to the treatise without removing the authors’ names, even if neither Rudovsky nor Sosnov contributed to the update.
So with that setup in mind, we arrive at the year 2008 at which point West sought to pay the men only $2,500 each for their contribution. In order to justify this offer, I assume that the 1988 contract was not for an explicit duration, but was instead terminable at will by either party (note: I’m unclear on how this affects the purported authorization for West to continue to keep Rudovsky and Sosnov’s names as authors). So anyway, disheartened with the 50% cut in pay, the two law professors declined to update the treatise. Nevertheless, the treatise was updated and published. And this 2008 update is at the heart of the law suit. Apparently the update, which was a “sham” since it was virtually identical to its prior version, bore the names of Rudovsky and Sosnov. So how do the professors respond? They file suit claiming defamation, of course. And, by the way, they do this notwithstanding the fact that West quickly informed all its subscribers that neither professor played any role in the 2008 update. Nevertheless, a trial ensues and a jury awards each professor $90,000 in actual damages (this is discounting the punitive damages). So that’s what happened (as I understand it). Are you outraged? Shocked? Confused? I am … and how!
To begin, at the risk of exposing some heretofore unrecognized legal incompetence, West’s actions don’t strike me as necessarily defamatory in nature, particularly if West had the contractual authorization to keep the professors’ names on the treatise. To be sure, I would think that this authorization is determinative of the outcome of the case (since if the contractual authorization was still in place, it’d be binding on the professors, thereby barring their claim of defamation). Even assuming that my analysis is misguided (or, alternatively, that there was no valid authorization to use the mens’ names), some mens rea has to be established. It’s been about a year since I studied First Amendment reputation laws, but I do seem to recall that whether malice is required can be determined by asking two questions: (1) whether there is a public plaintiff, and (2) whether there is a media defendant. Suffice it to say that without going into the legal analysis the facts as revealed in the two readings don’t support a finding of malice. Negligence, of course, is a much easier case to make.
Even assuming that a case for defamation is established (indeed, my thoughts on defamation aside, if we accept that there was no contractual authorization for West to use the authors’ names, I’m inclined to believe that a defamation claim is viable), was there really damage to these men? Such a subjective question is obviously difficult, but I do think that the two readings provide us with some insight. Shannon P. Duffy’s article (the reading for which I unfortunately don’t have a link), includes what I consider to be a very damning quote. Duffy informs us that Professor Rudovsky provided the following testimony at trial: “I was stunned, and when I began to think about it somewhat angry and somewhat humiliated.” Now just to be clear, I didn’t jumble this quote; it appears as written in the actual article. But even with its incoherency, the message is clear: Rudovsky was somewhat angry and somewhat humiliated to discover his name on what he deemed to be a sham product. And because he was somewhat upset, he was awarded $90,000 plus punitive damages! The reconciliation here has me confounded. What exactly is all this money for? After all, this is actual, not punitive, damages! Yet there doesn’t seem to be any evidence at all that either professor’s reputation was tainted in any way whatsoever (this conclusion is particularly buttressed by the reality that all the subscribers were quickly informed that neither professor took part in the 2008 update).
Don’t get me wrong, insofar as we’re going to have defamation actions for this type of conduct, I fully support the issuance of reasonable damages (both punitive and actual). But let’s be real here, these men just made a killing for temporarily having their names appear as authors on a sham update of a treatise, the prior versions of which they really did author. At this point everyone who cares is well aware of what happened and no one is going to think less of these men. Their reputations aren’t tarnished–everyone now knows that they had no involvement in the updated treatise. I realize that juries sometimes have a propensity to help out the little guys by really sticking it to corporations, but give me a break! Thoughts? I’m really anxious to see how blog readers (wishful thinking?) react to this. Leave comments please! Perhaps I’ll also try and edit this post or add comments revealing how my classmates responded.
Oh and for the record, I’d gladly be “somewhat angered and humiliated” in exchange for a heck of a lot less money than 90k. So if anyone is interested in paying me a large sum of money in exchange for the opportunity to temporarily embarrass me, please contact me.